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1993 DIGILAW 118 (ORI)

GOPAL KRISHNA SAHU v. STATE BANK OF INDIA

1993-04-21

ARIJIT PASAYAT

body1993
JUDGMENT : A. Pasayat, J. - Rejection of a petition under Order 9, Rule 13, Code of Civil Procedure, 1908 (in short, CPC) has brought the defendant to this Court. 2. A brief reference to the facts situation is necessary because the ultimate fate of the appeal depends upon adjudication of a short but interesting point of law. State Bank of India, respondent herein, instituted a suit (T. M. S. No. 142 of 1983) in the Court of Subordinate Judge, Chatrapur. The appellant herein is the defendant No. 1 in the said suit. He was set ex parte on 4-9-1985. but the ex parte decree was passed on 28-11-1986. An application to set aside the ex parte decree was filed on 27-12-1987. The primary stand was that he had no knowledge about the posting of the suit. The learned Subordinate Judge disbelieved the plea primarily on the ground that the appellant herein was represented by a counsel in the suit. 3. it is highlighted by the learned counsel in support of the appeal that originally the suit was filed in the Court of Subordinate Judge, Aska being registered as TMS No. S6 of 1983. After opening of the Court of Subordinate Judge at Chatrapur all the suits relating to the said Court including aforesaid IMS No. 56 of 1983 were transferred to the Court of Subordinate Judge, Chatrapur and the suit was registered as TIMS No. 142 of 1983. After the suit was transferred to the Court of Subordinate Judge, Chatrapur, no notice was received by the present appellant. Therefore, the ex parte decree had no sanctity in law. The learned counsel for plaintiff-respondent, however, submitted that once the appellant had appeared in the suit it was his duty to ascertain about the dale and it was not the duty of the Court to issue fresh notice. The only question that arises for consideration in this case is whether the transferee Court was obliged to issue fresh notice about the date of hearing to the parties. 4. The undisputed position is that originally the suit was instituted at Aska and had been transferred to Chatrapur and no notice of the first date when the matter was taken up at Chatrapur was intimated to the present appellant. 5. 4. The undisputed position is that originally the suit was instituted at Aska and had been transferred to Chatrapur and no notice of the first date when the matter was taken up at Chatrapur was intimated to the present appellant. 5. A similar question had come up for consideration of a Special Bench of the Patna High Court in Ram Sukul Pathak v. Kesho Prasad Singh ; AIR 1918 Pat 341 . It was observed that it would be desirable where an order of transfer is made that notice should be given in every case to the parties or their representatives. The view expressed by the Special Bench was followed by the Patna High Court in Hiralal and Others Vs. State of Bihar. The view was reiterated by the Court in Kishore Kumar Agrawal Vs. Basudeo Prasad Gutgutia and Another. In Krishnaji Mahadeo Bapat Vs. Wamanrao Balwantrao Shinde and Another, it was observed that when a suit is transferred to a distinct Court it would not be proper to sustain an ex parte decree because the defendant was aware of transfer but did not take steps to acquaint himself with the progress of suit or to appoint an advocate in the transferee Court. 6. I am in agreement with the view expressed by Patna and Bombay High Courts. It is desirable that the transferee Court should give notice of the date to which the case is posted to the parties. However, the position would be different where the case is transferred to a Court in the same station. A decision on the point is Kanhu Charan Pradhan and Ors. v. Banambar Pradhan and Anr. : 1985 (II) OLR 7 . Since there was no notice issued to the defendant- appellant in the present case when the matter was taken up by the transferee Court, the appellant had sufficient causes for not appearing on the date fixed. Thererore, the ex parte decree cannot be maintained, which is accordingly set aside. The matter shall now be taken up afresh for disposal on merits. To avoid unnecessary delay, the parties are directed to appear before the learned Subordinate Judge. Chatrapur on 23rd June, 1993 without any further notice. As the suit is of the year 1983, an early disposal of the same is desirable. The learned Subordinate Judge would do well to dispose of the suit by the end of January, 1994. To avoid unnecessary delay, the parties are directed to appear before the learned Subordinate Judge. Chatrapur on 23rd June, 1993 without any further notice. As the suit is of the year 1983, an early disposal of the same is desirable. The learned Subordinate Judge would do well to dispose of the suit by the end of January, 1994. The miscellaneous appeal is disposed of.